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Thursday, July 07, 2005

New York Times Reporter Is Jailed for Keeping Source Secret

The New York TimesJuly 6, 2005

By ADAM LIPTAKand MARIA NEWMAN

WASHINGTON, July 6 - A federal judge today ordered Judith Miller of The New York Times to be jailed immediately after she again refused to cooperate with a grand jury investigating the disclosure of the identity of a covert C.I.A. operative.

Another reporter who had been facing jail time on the same matter, MatthewCooper of Time magazine, agreed today to testify to a grand jury about his confidential source on the same matter, thus avoiding jail. Mr. Cooper said he had decided to do so only because his source specifically released him from promises of confidentiality just before today's hearing.

The judge, Thomas F. Hogan of Federal District Court in Washington, rejecteda request by Ms. Miller and her lawyers that she be allowed to serve herdetention at home or in Connecticut or elsewhere, and ordered that she beput in custody and taken to a jail in the District of Columbia area untilOctober, or until she changed her mind about testifying.

"There are times when the greater good of our democracy demands an act ofconscience," Arthur Sulzberger Jr., chairman of The New York Times Companyand publisher of The New York Times, said in a statement. "Judy has chosensuch an act in honoring her promise of confidentiality to her sources. Shebelieves, as do we, that the free flow of information is critical to aninformed citizenry."

Bill Keller, the newspaper's executive editor, said outside the court housethat Ms. Miller's decision to go to jail rather than disclose her source wasa "brave and principled choice."

"This is a chilling conclusion to an ultimately confounding case," he said.

Ms. Miller herself told the court, according to the news agency Reuters, "Ifjournalists cannot be trusted to keep confidences, then journalists cannotfunction and there cannot be a free press."

Judge Hogan made his decision after an hourlong hearing here this afternoonin which a special prosecutor and lawyers for both journalists presentedtheir respective cases for why the two should or should not be jailed.

Mr. Cooper told the judge that he had been prepared to go to jail untilshortly before the hearing.

"Last night I hugged my son good-bye and told him it might be a long timebefore I see him again," Mr. Cooper said, according to The Associated Press.But just before today's hearing, he had received "in somewhat dramatic fashion"a direct personal communication from his source freeing him from hiscommitment to keep the source's identity secret, The A.P. said.

Ms. Miller will be the first Times reporter to serve time behind bars forrefusing to disclose sources since M.A. Farber spent 40 days in a New Jerseyjail in 1978. In the Farber case, The Times itself was also fined $286,000.Four years later, Gov. Brendan T. Byrne pardoned Mr. Farber, who is nowretired, as well as the paper.

Last October, Ms. Miller and Mr. Cooper were sentenced to 18 months in jailfor civil contempt of court, but those sentences were stayed pending appeal.Last week, the Supreme Court refused to take up the case.

Judge Hogan said last week that the two reporters now faced serving only 4of the original 18 months of their sentence, because that is all the timeleft in the term of the current grand jury investigating the leak case.Civil contempt is meant to be coercive rather than punitive.

But the special prosecutor, Patrick A. Fitzgerald, has suggested that thereporters may also face criminal prosecution, which could entail additionalpenalties.

The case highlights a collision of the press's right to protect its sources,the government's ability to investigate a crime and even the Bushadministration's justification for going to war in Iraq.

It began two years ago, when the identity of the C.I.A. operative, ValeriePlame, was first disclosed by the syndicated columnist Robert Novak,presumably after the information was provided by someone in government.Three days later, Mr. Cooper, in an article that also carried the bylines oftwo other reporters, made a similar disclosure on Time magazine's Web site.

Ms. Miller, on the other hand, did not publish any such disclosures in TheTimes or elsewhere.

In his column, Mr. Novak, who identified Ms. Plame as the wife of a formerdiplomat who was critical of American policy on Iraq, cited as his sourcestwo senior Bush administration officials whom he did not identify.

Mr. Fitzgerald is investigating whether by telling reporters about Ms. Plamepeople in the Bush administration broke a law meant to protect theidentities of covert intelligence operatives. As part of that inquiry,several senior administration officials have testified before the grandjury.

Ms. Plame's husband, Joseph C. Wilson IV, a former United States ambassador,has maintained that his wife's cover was blown in revenge for an Op-Edarticle that he had written for The New York Times questioning Bushadministration assertions about weapons of mass destruction that served assizable justification for going to war with Iraq.

Mr. Novak, who has not been held in contempt or publicly threatened withjail time, has not commented on his involvement in the investigation. Legalexperts following the case have said they presume he has cooperated with thespecial prosecutor.

But Mr. Novak has come under increasing criticism from other journalists andcolumnists for not disclosing what he knows and what cooperation, if any, hehas given to Mr. Fitzgerald. Mr. Novak said recently that he "will revealall" after the matter is resolved, adding that it is wrong for thegovernment to jail journalists.

The judge's decision to jail Mr. Cooper comes despite Time magazine'sdecision last week to provide the special prosecutor with Mr. Cooper's notesand other documents after the Supreme Court refused to hear the case. In afiling on Tuesday, Mr. Fitzgerald said that he had reviewed the documentsand determined that Mr. Cooper's testimony "remains necessary."

"Journalists are not entitled to promise complete confidentiality - no onein America is," Mr. Fitzgerald told the judge on Tuesday.

Mr. Fitzgerald also said in the court papers that the source for both Mr.Cooper and Ms. Miller had waived confidentiality, giving the reporterspermission to reveal where they got their information. The prosecutor didnot identify that person, nor say whether the source for each reporter wasthe same person.

Mr. Cooper told the judge today while he had been told his source had signeda general waiver of confidentiality, he would only act with a specificwaiver from his source, which he said he got today.

"I received express personal consent" from the source, he told the judge.

The judge and Mr. Fitzgerald accepted Mr. Cooper's offer to testify.

"That would purge you of contempt," Mr. Hogan said, according to The A.P.

Earlier, on Friday, the reporters filed papers asking that if the judgedecided to impose his sentence that they be allowed to serve their time inhome confinement. Otherwise, Ms. Miller asked to be sent to a federal prisoncamp in Danbury, Conn., and Mr. Cooper to one in Cumberland, Md.

Mr. Fitzgerald opposed both those requests on Tuesday, saying the local jailin the District of Columbia, where the grand jury is sitting, "or some othernearby federal facility" would be more appropriate.

"Forced vacation at a comfortable home is not a compelling form ofcoercion," he wrote. "Certainly one who can handle the desert in wartime,"he added, referring to Ms. Miller's coverage of the war in Iraq, "is farbetter equipped than the average person jailed in a federal facility."

Mr. Fitzgerald, who until then had been restrained in his public filings,was also harshly critical of the position taken by Ms. Miller and ofstatements supporting her by The Times.

"The court should advise Miller that if she persists in defying the court'sorder that she will be committing a crime," Mr. Fitzgerald wrote. "Millerand The New York Times appear to have confused Miller's ability to commitcontempt with a legal right to do so."

He added: "Much of what appears to motivate Miller to commit contempt is themisguided reinforcement from others (specifically including her publisher)that placing herself above the law can be condoned." The publisher of TheTimes, Arthur Sulzberger Jr., has repeatedly said the newspaper supports Ms.Miller.

In the 1978 case, Mr. Farber refused to provide his notes to a doctor whowas charged with killing patients by injecting them with curare. The doctor,Dr. Mario Jascalevich, was acquitted. Mr. Farber was the only person toserve time in the case.

Adam Liptak reported from Washington for this article and Maria Newmanreported from New York.